A bankrupt may cross-examine the Official Assignee on evidence supporting an application to extend his bankruptcy, but only on passages addressing alleged failures to cooperate in recovering assets or concealment of assets, the High Court has ruled.
In a judgment delivered on 15 October 2018, Ms Justice Costello considered John Hoey’s application for leave to question Christopher D. Lehane, the Official Assignee in Hoey’s bankruptcy. The application to extend the bankruptcy period under section 85A of the Bankruptcy Act 1988 had not yet been heard. The judgment dealt only with the cross-examination application, not whether the bankruptcy should be extended.
Hoey was adjudicated bankrupt on 29 February 2016. The Official Assignee said he believed Hoey had failed to cooperate in realising assets, or had hidden or failed to disclose income or assets available for creditors. Those were allegations underpinning the extension application, not findings made in this judgment.
Justice Costello said the Court of Appeal’s decision in *Sean Dunne, a bankrupt* [2017] IECA 304 entitled a bankrupt to question the Official Assignee about the basis for such beliefs, as a matter of procedural fairness. But the judge rejected a broader inquiry into the administration of the bankruptcy estate or evidence from earlier applications.
Hoey had listed 14 matters on which he said questioning was necessary. The judge said they were not matters for cross-examination in the section 85A application insofar as they were not directed to the Official Assignee’s stated belief about the alleged asset-related wrongdoing.
The court ordered that the Official Assignee be available for cross-examination on his two affidavits supporting the section 85A motion. Hoey must identify in advance the specific passages or paragraphs he wishes to question him about. Questioning must stay within those passages and address the Official Assignee’s belief concerning recovery or concealment of assets. The court did not determine the underlying extension application.